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THE  JUDICIARY, 


An  Address  Delivered  by 


J.  C.  PRITCHARD, 


At  the  Annual  Banquet  of  the  Dialectic  and  Philanthropic 

Societies  of  the  University  of  North  Carolina, 

Chapel  Hill,  May  30,  1908. 


THE  JUDICIARY. 


By  the  invitation  with  which  I  have  been  iionored  to  speak 
before  this  vei-y  intelligent  audience  upon  the  subject  of  the 
judiciary,  a  topic  has  been  assigned  me  which  is  singularly  sug- 
gestive of  interesting  reflections.  At  the  same  time,  in  view  of 
the  largeness  of  the  subject,  I  recognize  the  difficulty  of  satis- 
factorily discussing  it  within  the  limits  appropriate  to  an  occa- 
sion like  the  present. 

One  of  the  earliest  and  loftiest  conceptions  of  God  is  as 
the  Great  Judge  Eternal  of  the  Universe;  and  so,  the  most  ex- 
alted function  with  which  a  man  can  be  entrusted  is  the  admin- 
istration of  justice  to  his  fellow  beings.  Hence,  it  has  been 
said  by  a  great  philosopher  that,  in  the  performance  of  their 
official  duties.  Judges  "should  imitate  God,  in  whose  seat  they 
sit." 

It  is  doubtless  because  of  these  high  and  exacting  require- 
ments that,  as  was  said  in  connection  Avith  Chief  Justice  -Mar- 
shall, "the  world  has  produced  fewer  instances  of  truly  great 
Judges  than  it  has  of  great  men  in  almost  any  other  department 
of  life." 

The  Judicial  Office  is  as  old  as  organized  society.  Origi- 
nally, it  was  filled,  in  person,  by  the  head  of  the  community — 
whether  Priest,  Patriarch  or  King — who  proudly  styled  him- 
self the  "Fountain  of  Justice."  Later  on,  as  states  became 
more  populous  and  society  more  complex,  the  administration 
of  justice  had  to  be  entrusted  to  personal  representatives  of  the 
sovereign,  taken  from  the  body  of  the  people;  and  thus  was 
first  formed  the  Judiciary,  an  institution,  which,  in  one  form 
or  another,  is,  and  for  time  out  of  mind  has  been,  common  to 
all  governments. 

The  Judiciary,  hewever,  will  be  found  to  be  very  different 
in  different  ages  and  in  different  countries,  because,  the  free- 
dom, the  virtue  and  the  happiness  of  a  People  may  be  adequate- 
ly measured  by  the  independence,  integrity  and  prestige  of  its 


Judiciary.  Edmund  Burke  said:  "It  is  the  public  justice  that 
holds  the  Community  together ;"  and  certain  it  is  that  a  truly 
great  Judge  can  only  exist  in  an  age  of  political  liberty  and  pub- 
lic morality,  "in  which  he  is  the  representative  of  the  abstract 
justice  of  the  people  in  the  administration  of  the  law,  and  is 
rewarded  for  the  highest  achievements  of  duty,  by  proportion- 
ate admiration  and  reverence." 

These  observations  are  true  of  the  Judiciary  all  over  the 
world,  but  in  the  United  States,  the  Judiciary  occupies  a  posi- 
tion which,  so  far  as  any  European  Country  is  concerned,  is 
wholly  unique. 

Prior  to  the  advent  of  what  I  may  call  the  "American 
iheory"  of  the  Judiciary,  that  arm  of  the  government  was  whol- 
ly subject,  and  subordinate  to,  the  Legislative  or  Executive, 
branch,  or  to  both;  and  was  a  mere  creature  of  one  or  both  of 
those  departments,  according  as  one  or  the  other,  or  both  of 
them,  formed  the  dominant  power  in  the  State. 

The  independence  of  the  ffudiciary,  as  understood  and 
practiced  in  America,  did  not  necessarily  grow,  as  some  suppose, 
out  of  the  separation  of  governmental  powers  into  Legislative, 
Judicial  and  Executive.  This  classification  exists  necessarily, 
in  the  very  nature  of  those  powers,  and  the  mere  fact  that  these 
different  functions  of  government  are  performed  by  separate 
departments,  would  not  necessitate  all  of  those  departments 
being  independent  of  each  other;  on  the  contrary,  in  England 
(whose  government  Montesquieu  cites  as  an  ideal  example  of 
the  separation  of  these  three  departments)  the  legislative  de- 
partment— Parliament — is  supreme  in  authority  over  both  the 
others. 

In  America,  was  developed  the  theory  that  the  ultimate 
sovereignty  in  human  society  exists  in  the  organized  body  of 
the  People  as  a  whole,  and  in  that  body,  alone,  exists  that  Di- 
vine right  to  rule  which  some  Monarchs  still  arrogate  to  them- 
selves. 

Now,  it  is,  of  course,  physically  impossible  for  all  the 
powers  of  Sovereignty,  in  a  large  State  or  ISTation,  to  be  per- 
sonally and  directly  exercised  by  the  Sovereign  itself,  whether 


that  Sovereign  be  one  man — the  !^^onal■ch — or  ten  million  men 
organized  as  one  body — the  Nation  itself.  Hence,  just  as  an 
absolute  monarch  (in  order  to  enable  him  to  exercise  the  powers 
and  perform  the  duties  of  Sovereignty  which  he  could  not  do 
in  person)  would  establish  a  government  consisting  of  a  Board 
of  Councillors  to  consider  and  make  laws,  a  Board  of  Judges 
to  construe  and  administer  them,  and  a  Commander  of  his  mil- 
itary forces  to  execute  the  laws  and  defend  the  country  from 
foreign  foes,  and  just  ag  these  persons  would  not  act  in  their 
own  names,  but  in  the  name,  and  as  the  servants  and  representa- 
tives of  their  Sovereign  Monarch;  so,  even  when  that  Sover- 
eign is  not  a  single  Monarch,  but  the  organized  body  of  the 
whole  People,  acting  as  a  Nation,  yet  it  acts  in  the  same  way  as 
would  a  single  ^Monarch ;  that  is  to  say — being  unable  to  per- 
sonally and  directly  exercise  all  the  powers  of  sovereignty,  and, 
acting  and  speaking  through  its  written  constitution — through 
which,  alone,  the  Sovereign  People  can  speak  and  act — it  forms 
a  government,  just  like  the  single  Monarch  would  do,  composed 
of  a  Legislative  branch,  to  consider  and  make  laws,  a  Judicial 
branch  to  construe  and  administer  them,  and  an  Executive 
branch  to  execute  the  laws  and  defend  the  country  from  its  foes. 

Neither  one  of  these  branches  is  sovereign  any  more  than 
was  Field  Marshall  Oyama,  the  Sovereign  of  Japan,  because  he 
commanded  all  of  the  Mikado's  forces.  Each  branch  of  the 
government  is  but  the  creature,  representative,  and  servant  of 
the  Sovereign  which  created  it,  and  which,  in  Russia  woxild  be 
the  Czar,  in  Japan,  the  Mikado,  and  in  the  United  States,  the 
American  People. 

While  these  governmental  departments  are  all  servants  of 
one  master,  that  is  to  say,  the  real  Sovereign,  yet,  within  the 
scope  of  their  respective  spheres,  it  is  important  that  they  be 
independent  of  each  other,  lest  one,  obtaining  mastery  over  its 
fellow  servants,  should  succeed  in  wresting  the  actual  Sover- 
eignty from  their  common  master.  To  avoid  the  possibility 
of  this,  the  Sovereign  People,  whose  servants  the  governmental 
departments  are,  have,  in  the  constitution  which  created  the 
government,   prescribed  certain  checks  and  balances  so  as  to 


preserve  tlie  independence  of  these  departments  and  to  correct 
an  abuse  of  power  by  either  of  them,  without  necessitating  a 
resort  to  the  Sovereign  itself,  that  is,  to  the  People  as  a  Nation 
in  their  primary  capacity. 

Ifow,  this,  in  brief,  is  the  American  theory  of  government, 
and  one  of  its  consequences  is  to  place  the  Judiciary,  as  a  co- 
ordinate department  of  our  government,  on  a  full  equality  with 
each  of  the  other  two  departments,  in  the  matter  of  their  mutual 
independence  of  each  other  and  of  the  direct  accountability  of 
each  to  their  common  master,  the  organized  People  of  the  ISTa- 
tion,  the  true  and  only  Sovereign  of  this  country. 

A  result  of  this  mvitual  independence  and  eommon  ac- 
countability of  the  Legislative,  Judicial  and  Executive  Depart- 
ments of  the  government,  has  been  to  impose  upon  the  Ameri- 
can Judiciary  a  function  which  had  no  prototype  in  the  world, 
and,  to  this  day,  has  no  coimterpart  in  Eiirope;  I  refer  to  the 
function  of  passing  upon  the  constitutionality  and  therefore, 
the  validity,  of  statutes  enacted  by  the  Legislative  branch.  A 
function  the  most  delicate  and  important  with  which  the  Ju- 
diciary of  any  country  was  ever  entrusted. 

The  history  of  the  Supreme  Court  of  the  United  States 
affords  the  best,  as  well  as  the  most  notable,  example  of  the 
practical  application  and  successful  operation  of  this  American 
theory  of  the  Judiciary,  although  that  theory  is  of  universal 
application  in  the  governments  of  the  several  States  composing 
the  Union.  "I  take  it  as  the  highest  encomium  on  this  coun- 
try," said  Patrick  Henry,  "that  the  acts  of  the  legislature,  if 
unconstitutional,  are  liable  to  be  opposed  by  the  judiciary." 

The  Supreme  Court  of  the  LTnited  States  being  by  far 
the  most  prominent  court  in  this  covmtry- — and  for  that  matter, 
the  most  notable  tribunal  in  the  world, — it  is  not  surprising 
that  foreigners  should  have  supposed  that  this  American  idea 
of  the  right — no,  I  will  say,  hounde.n  duty — of  a  court  to  re- 
fuse recognition  to  a  statute  on  the  ground  of  its  unconstitu- 
tionality,—had  its  origin  with  the  creation  of  the  Supreme 
Court  by  the  Federal  Convention  of  1787.  Accordingly,  we 
find  so  learned  and  accurate  a  writer  as  Sir  Henry  Maine  re- 
ferring to  that  court  as  "a  virtually  unique  creation  of  the 


founders  of  the  Constitiitidn."  Even  a  notable  American  his- 
torian calls  the  Supreme  ConH  "the  most  original  work  ac- 
complished bv  the  founders  of  tlie  Constitution,"  and  says  that 
that  court  had  "no  prototype  in  history" — the  peculiar  charac- 
teristic referred  to  by  both  of  these  writers  being  the  right  of 
the  court  to  refuse  recognition  to  unconstitutional  statutes. 

But,  as  has  been  observed  by  others,  this  is  not  strictly 
correct.  In  fact,  it  may  be  said  that  great,  valuable  and  en- 
during institutions  are  never  the  work  of  invention  but  are  al- 
ways the  result  of  evolution ;  and  this  was  true  of  the  Supreme 
Court  of  the  United  States. 

It  is  true  that  the  right  and  duty  of  the  courts  to  refuse 
recogTiition  to  an  unconstitutional  law  would  seem  to  follow  as 
a  necessary  consequence  of  the  adoption  of  a  written  constititu- 
tion;  and  yet  it  may  be  doubted  if  that  consequence  would  have 
followed  in  America  but  for  the  peculiar  situation  and  exper- 
ience of  the  American  people  which  gradually  educated  them 
up  to  the  point ;  because,  in  Switzerland,  where  they  have  a 
written  constitution  also,  the  Legislative  branch  is  expressly 
made  the  sole  judge  of  the  constitutionality  of  its  enactments 
and  the  Judiciary  is  bound  thereby. 

In  the  American  Colonies,  the  legislatures  never  did  have, 
or  claim,  the  absolute  or  unlimited  power  of  legislation.  These 
Colonies,  for  the  most  part,  were  mere  business  corporations, 
gotten  up  for  the  purpose  of  trade  and  created  by  charters  of 
incorporation,  which  provided  for  their  organization  and  gov- 
ernment. These  old  charters  first  suggested  the  idea  of  our 
written  constitutions,  which,  in  1776,  (though  previously  sug- 
gested once  or  twice  by  philosophers)  formed  an  entirely  new 
departure  in  actual  governmental  organization.  Of  course  the 
Legislative  Assembly  of  a  Colony  had  no  powers  whatever,  ex- 
cept such  as  were  conferred  upon  it  by  the  charter  of  the  Col- 
ony, or  by  some  special  enabling  Act  of  Parliament,  and  so,  at 
an  early  day,  the  courts  were  called  upon,  from  time  to  time, 
to  refuse  recognition  to  the  ultra  vires  enactments  of  Colonial 
Assemblies,  as  in  the  case  of  Winthrop  vs.  Lechemere  in  which 
the  English  court  held  a  statute  passed  by  the  Colonial  As- 
sembly of  Connecticut  to  be  void  as  contrary  to  the  charter  of 
that  Colony  and  to  English  law. 


6 

Accordingly,  when  the  Colonies  declared  their  independ- 
ence, and  began  to  establish  governments  of  their  own,  not  only 
were  they  (from  their  previous  experience  with  the  British 
Parliament  and  its  claims  of  omnipotence)  particularly  fearful 
of  ursupation  of  authority  by  the  Legislative  branch,  but  they 
were  thoroughly  accustomed  to  seeing  that  branch,  as  it  had 
existed  in  the  colonies,  subjected  to  the  check  of  Judicial  in- 
qiiiry  into  the  constitutionality  of  its  acts.  The  early  State 
courts,  therefore,  did  not  fail  to  apply  this  check  to  the  new 
State  Legislatures,  just  as  the  old  judiciary  had  done  to  the 
Colonial  Assemblies. 

As  far  back  as  1780,  Chief  Justice  Brearly  of  the  New 
Jersey  Supreme  Court  is  said  to  have  given  it  as  the  opinion 
of  himself  and  associates  that  the  Judiciary  had  the  right  to 
pass  upon  the  constitutionality  of  Statutes. 

In  1782,  in  the  celebrated  case  of  Commonwealth  vs.  Ca- 
ton,  before  the  Virginia  Court  of  Appeals,  the  distinguished 
Edmund  Randolph,  then  Attorney  General  of  that  State,  con- 
tended that  the  court  had  no  choice  but  to  apply  a  duly  enacted 
Statute,  whether  it  be  unconstitutional  or  not ;  but,  to  this  con- 
tention, stout-hearted  old  Chancellor  Wythe  replied,  with 
warmth,  as  follows: 

"If  the  whole  Legislature  (an  act  to  be  deprecated)  should 
attempt  to  overleap  the  bounds  prescribed  to  them  by  the  people, 
I,  in  administering  the  public  justice  of  the  Country,  will  meet 
the  United  powers  in  my  seat  on  this  tribunal,  and,  pointing 
to  the  Constitution,  will  say  to  them  'Here  is  the  limit  of  your 
authority  and  hither  shall  you  go  but  no  further'," 

Accordingly,  that  court  held  that  it  did  have  the  power  to 
declare  any  law  void  if  unconstitutional.  To  the  ofBcial  report 
of  this  case  in  the  Virginia  Reports,  is  appended  the  following 
note  by  Daniel  Call,  the  distinguished  old  reporter: 

"It  is  said,  that  this  was  the  first  case  in  the  United  States, 
where  the  question  relative  to  the  mdlify  of  an  unconstitutional 
law  was  ever  discussed  before  a  judicial  tribunal ;  and  the  firm- 
ness of  the  judges  (particularly  of  Mr.  Wythe,)  was  higUy 
honorable  to  them;  and  will  always  be  applauded,  as  having, 


incidentally,  fixed  a  precedent,  whereon,  a  general  practice, 
wliicii  tlic  people  of  this  country  think  essential  to  their  rights 

and  liberty,  lias  been  establislied." 

The  matter,  however,  gave  tlie  judges  sufficient  concern 
to  address  a  remonstrance  to  the  General  Assembly  of  Vir- 
ginia, in  wliieh  they  said  they  had 

"found  it  unavoidable  to  consider  *  *  *  whether  the 
principles  (expressed  in  the  Legislative  Acts)  of  this  case  do 
not  violate  those  of  the  Constitution  or  form  of  government 
which  the  people  in  1776  *  *  *  established  as  the  foun- 
dation of  that  government  which  they  judged  necessary  for 
the  preservation  of  their  persons  and  their  property,  and,  if 
such  violation  were  apparent,  whether  they  (the  Judges)  had 
the  power,  and  it  was  their  duty,  to  declare  that  the  act  must 
yield  to  the  Constitution?  On  this  view  of  the  subject,  (said 
they),  the  following  alternatives  presented  themselves  to  the 
Court:  either  to  decide  those  questions  or  to  resign  their  of- 
fices. They  judged  that  a  resignation  would  subject  them  to 
the  reproach  of  deserting  their  stations,  and  on  that  groimd, 
found  themselves  obliged  to  decide,  and  in  that  decision  to 
declare,  that  the  Constitution  and  the  act  are  in  opposition  and 
cannot  exist  together,  and  that  the  former  must  control  the  lat- 
ter." 

About  the  same  time,  in  the  case  of  Holmes  vs.  Walton, 
the  New  York  court  declared  a  law  of  that  State  unconstitu- 
tional and  void. 

In  1786,  a  defence,  on  the  ground  of  the  alleged  uncon- 
stitutionality of  a  law,  was  made  before  the  Rhode  Island  Court 
in  Trevitt  vs.  Weeden,  though  I  believe  the  case  was  decided 
on  some  other  point. 

In  1787  the  Supreme  Court  of  North  Carolina  in  Bayard 
vs.  Singleton,  declared  a  Statute  imconstitutional  and  void. 
The  court,  in  that  case,  discussing  its  power  to  declare  an  act  of 
the  legislature  unconstitutional,  said,  among  other  things: 

"Another  mode  was  proposed  for  putting  the  matter  in 
controversy  on  a  more  constitutional  footing  for  a  decision  than 
that  of  the  motion  under  the  aforesaid  act.  The  court  then, 
after  everv  reasonable  endeavor  had  been  used  in  vain  for  avoid- 


8 

ing  a  disagreeable  difference  between  the  Legislature  and  the 
judicial  powers  of  the  State,  at  leng-th  with  much  apparent  re- 
luctance, but  with  great  deliberation  and  firmness,  gave  their 
opinion  separately,  but  unanimously  for  overruling  the  afore- 
mentioned motion  for  the  dismission  of  the  said  suits,  in  the 
course  of  which  the  judges  observed  that  the  obligation  of  their 
oaths  and  the  duty  of  their  office  required  them  in  that  situation 
to  give  their  opinion  on  that  important  and  momentous  subject, 
and  that,  notwithstanding  the  great  reluctance  they  might  feel 
against  involving  themselves  in  a  dispute  with  the  Legislature 
of  the  State,  yet  no  object  of  concern  or  respect  could  come  in 
competition  or  authorize  them  to  dispense  with  the  duty  they 
owed  the  iDublic,  in  consequence  of  the  trust  they  were  invested 
with  under  the  solemnity  of  their  oaths;  that  they,  therefore, 
were  bound  to  declare  that  they  considered  that  whatever  disa- 
bilities the  i^ersons  under  whom  the  plaintiffs  were  said  to  de- 
rive their  title  might  jiistly  have  incurred  against  their  main- 
taining or  prosecuting  any  suits  in  the  courts  of  this  State,  yet 
that  such  disabilities  in  their  nature  were  merely  personal,  and 
not  by  any  means  capable  of  being  transferred  to  the  present 
plaintiffs,  either  by  descent  or  purchase,  and  that  these  plain- 
tiffs being  citizens  of  one  of  the  United  States,  or  citizens  of 
this  State,  by  the  confederation  of  all  the  States  which  is  to  be 
taken  as  a  part  of  the  law  of  the  land,  unrepealable  by  any  act 
of  the  General  Assembly ;  that  by  the  Constitution  every  citizen 
had  undoubtedly  a  right  to  a  decision  of  his  property  by  a  trial 
by  jury,  for  that  if  the  Legislature  could  take  away  this  right, 
and  require  him  to  stand  condemned  in  his  property  without  a 
trial,  it  might  with  as  much  authority  require  his  life  to  be  taken 
away  without  a  trial  by  jury,  and  that  he  should  stand  condenm- 
ed  to  die  without  the  formality  of  any  trial  at  all;  that,  if  the 
members  of  the  General  Assembly  could  do  this,  they  might 
with  equal  authority  uot  only  render  themselves  the  legislators 
of  the  State  for  life,  without  any  further  election  of  the  people, 
from  thence  transmit  the  dignity  and  authority  of  legislation 
down  to  their  heirs  male  forever;  but  that  it  was  clear  that  no 
acts  they  could  pass  could  by  any  means  repeal  or  alter  the 
Constitution,  because,  if  they  could  do  this,  they  would  at  the 
same  instant  of  time  destroy  their  own  existence  as  a  Legisla- 
ture, and  dissolve  the  government  tliereby  established.  Conse- 
quently the  Constitution  (which  the  judicial  power  was  bound 
to  take  notice  of  as  much  as  of  any  other  law  whatever),  stand- 
ing in  full  force  as  the  fundamental  law  of  the  land,  notwith- 
standing the  act  on  which  the  present  motion  was  grounded, 


tlip  same  act  must,  of  coiirso,  in  tliat  instance,  stand  as  abro- 
gated and  witiiout  any  eflfect." 

In  a  letter,  dated  1788,  from  Mr.  Cutting  to  Mr.  Jeifer- 
son,  it  is  stated  that  several  years  before  that,  the  Supreme 
Court  of  Massachusetts  bad  declared  a  Statute  unconstitutional 
and  void. 

Thus,  it  will  be  seen  that  the  idea  of  clothing  the  Juiliciary 
with  the  power  of  reviewing  the  constitutionality  of  Legislative 
acts,  did  not  originate  along  with  the  Supreme  Court  of  the 
United  States,  in  the  Convention  of  1787,  but  was  an  idea  wbicb 
the  American  peojile,  were,  even  at  that  time,  already  not  only 
familiar  with  but  definitely  attached  to. 

The  first  instance  in  which  this  power  seems  t«  have  been 
exercised  by  a  Federal  Court,  was  in  Heyburne's  case  in  1791, 
in  which  the  Judges  of  a  United  States  Circuit  Court  refused 
to  exercise  functions  imposed  upon  them  by  Act  of  Congress 
because  the  Act  was  inconsistent  with  the  Constitution. 

In  1803,  the  question  came,  for  the  first  time,  before  the 
Supreme  Court  of  the  United  States,  in  the  celebrated  case  of 
Marbury  vs.  Madison,  in  which  Chief  Justice  Marshal]  de- 
cided against  the  constitutionality  of  a  statute  which  enlarged 
the  jurisdiction  of  that  court  at  the  expense  of  the  Executive 
Department,  and  rendered  a  decision  of  such  convincing  and 
irrefutable  logic,  that  the  question  was  settled  foi-ever.  In  his 
opinion  he  said: 

"The  powers  of  the  legislature  are  defined  and  limited. 
To  what  purpose  is  that  limitation  committed  to  writing,  if 
these  limits  may,  at  any  time,  be  passed,  by  those  intended  to 
be  restrained  ?  *  *  *  It  is  a  proposition  too  plain  to  be 
contested  that  either  the  Constitution  controls  any  legislative 
act  repugnant  to  it  or  that  the  legislature  may  alter  the  Consti- 
tution by  an  ordinary  act.  Between  these  two  alternatives  there 
is  no  middle  groimd.  The  Constitution  is  either  a  superior 
paramount  law  *  *  *  or  it  is  on  a  level  with  orclinary 
legislative  acts  *  *  *  jf  ^jjg  former  part  of  the  alterna- 
tive be  true,  then  a  legislative  act  contrary  to  the  Constitution 
is  not  law;  if  the  latter  part  be  true,  then  written  Constitutions 
are  absurd  attempts  on  the  part  of  the  people  to  limit  a  power, 
in  its  own  nature  illimitable." 


10 

In  1816,  in  the  great  case  of  McCuUough  vs.  Maryland, 
Chief  Justice  Marshall,  while  sustaining  a  Statute  which  had 
been  attacked  on  the  ground  that  it  was  an  undue  assumption 
of  power  by  Congress,  again  expressed  himself  about  the  exer- 
cise of  this  novel  function  of  passing  on  the  constitutionality  of 
a  statute,  saying: 

"Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
Constitution,  and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited  but  con- 
sist with  the  letter  and  spirit  of  the  Constitution,  a?'e  constitu- 
tional. Should  Congress,  (however)  in  the  exercise  of  its  pow- 
ers, adopt  measures  which  are  prohibited  by  the  Constitution; 
or  should  Congress,  iinder  pretext  of  exceeding  its  powers,  pass 
laws  for  the  accomplishment  of  objects  not  entrusted  to  the  gov- 
ernment; it  woiild  become  the  painful  duty  of  this  tribunal, 
should  a  case  requiring  such  decision  come  before  it,  to  say 
that  such  an  act  was  not  the  law  of  the  land.  But  where  the 
law  is  not  prohibited  and  is  really  calculated  to  effect  any  of 
the  objects  entrusted  to  the  government,  to  undertake  to  enquire 
here  into  the  degree  of  its  necessity  would  be  to  pass  the  line 
which  circumscribes  the  Judicial  department  and  to  tread  on 
Legislative  gTound.  This  court  disclaims  all  pretensions  to 
such  powers." 

When  we  consider  these  interpretations  of  this,  the  greatest 
of  judicial  powers,  and  the  impartial,  disinterested  and  moder- 
ate exercise  of  that  power  which  led  the  Court  to  first  overthrow 
a  Statute  designed  to  extend  its  own  prerogatives,  and  then  to 
sustain  a  Statute  alleged  to  be  an  undue  assumption  of  power 
by  a  co-ordinate  branch  of  government,  we  may  join  with  Wil- 
liam Pinckney  in  saying  that  we  see,  in  these  omens,  "a  pledge 
of  immortality  for  the  Union." 

The  first  tribunal,  in  the  nature  of  a  Federal  Court,  that 
ever  existed  in  this  country,  was  the  old  "Court  of  Appeals  in 
Cases  of  Capture,"  created  by  the  Continental  Congress  in 
1779,  ten  years  before  the  Supreme  Court  of  the  United  States 
came  into  being.  This  court,  which  had  cognizance  only  of 
prize  cases  growing  out  of  captures  of  hostile  ships,  was  com- 
posed of  three  Jiidges  and  was  required  to  proceed  in  accord- 


11 

anco  with  International  Law,  and  the  respective  States  were 
called  upon  to  enforce  its  decrees. 

Two  years  later,  in  1781,  by  the  old  Articles  of  Confeder- 
ation, a  second  step  was  taken  towards  the  establishment  of  a 
Federal  Judiciary,  by  giving  Congress  power  to  decide  "all 
disputes  and  differences  now  subsisting,  or  that  hereafter  may 
arise,  between  two  or  more  States  concerning  boundary,  juris- 
diction or  other  cause  whatsoever."  It  was  provided,  however, 
that  this  power  was  to  be  exercised  through  Commissioners  or 
Judges,  to  be  selected  by  Congress  from  each  of  the  State?. 
Upon  the  establishment  of  the  Supreme  Court  of  the  United 
States,  this  power  among  others  was  conferred  upon  it,  and,  as 
Chief  Justice  Taney  observed  in  the  case  of  the  State  of  Florida 
against  the  State  of  Georgia,  (which  was  a  suit  brought  in  the 
Supreme  Court  to  settle  the  boundary  line  between  those 
States)  :  "A  suit  in  a  court  of  justice  between  such  parties  and 
upon  such  a  question  is  without  example  in  the  jurisprudence 
of  any  other  country." 

Something  like  one  hundred  and  twenty  cases  were,  first 
and  last,  decided  by  the  two  original  tribunals  just  referred  to. 

Finally,  in  1787,  was  created  by  the  New  Constitution, 
the  great  Supreme  Court  of  the  United  States,  the  origo  et  fon-t 
of  the  real  Federal  Judiciary,  and  the  most  august,  powerful, 
and  venerated  judicial  tribunal  ever  known  in  the  world. 

Judge  Story  says  that  "the  lack  of  a  separate  Judiciary 
had  been  one  of  the  vital  defects  of  the  Confederation."  Ac- 
cordingly, each  of  the  four  drafts  of  the  proposed  Constitution, 
which,  by  Randolph,  Pinckney,  Paterson  and  Hamilton,  re- 
spectively, were  submitted  to  the  Convention  of  1787,  contain- 
ed provisions  for  a  regular  Federal  Judiciary  system. 

At  one  time,  it  was  proposed  to  authorize  Congress  to  nega- 
tive unconstitutional  acts  passed  by  State  legislatures;  because, 
as  earnestly  pointed  out  by  Mr.  Madison,  control  over  State  leg- 
islation violative  of  the  Federal  Constitution,  is  absolutely  es- 
sential to  the  preservation  of  the  Nation.  But,  as  was  pointed 
out  by  Roger  Sherman,  Congress  is  not  the  proper  body  to  exer- 
cise this  control ;  "for,"  said  he,  "it  is  a  wrong  principle  to  as- 
sume that  a  State  Statute  violative  of  the  Federal  Constitution 


12 

could  be  valid  or  operative  for  any  purpose,  unless  or  until 
negatived  or  repealed  by  a  subsequent  Act  of  Congress." 

Thus,  it  fell  naturally  and  properly  to  the  Judiciary  to 
exercise  this  control  by  refusing  recognition  to  any  State  stat- 
ute— just  as  it  must,  to  any  Act  of  Congress — which  is  in  vio- 
lation of  the  Federal  Constitution. 

The  first  case  in  v^hich  the  Supreme  Court  of  the  United 
States  decided  a  State  statute  to  be  unconstitutional,  was 
United  States  vs.  Peters,  from  Pennsylvania  in  1809. 

When  the  Judiciary  Article  of  the  Federal  Constitution 
came  from  the  Committee  on  Detail  of  the  Convention  of  1787, 
it  gave  to  the  Supreme  Court,  jurisdiction  in  "all  cases  arising 
under  the  laws  passed  by  the  Legislature  of  the  United  States ;" 
but  the  Convention  changed  this  to  read:  All  cases,  in  law  and 
equity,  arising  imder  this  constitution,  the  laws  of  the  United 
States  and  Treaties  made,  or  which  shall  be  made  under  their 
authority." 

While  the  constitution  was  pending  before  the  People  for 
its  adoption,  it  was,  in  some  instances,  urged  against  its  adop- 
tion that  this  clause  was  too  vague  and  general.  To  this  ob- 
jection, Mr.  Deane,  in  the  Iforth  Carolina  Ratifying  Conven- 
tion, made  reply  as  follows: 

"For  my  part,  I  know  but  two  ways  in  which  the  laws  can 
be  executed  by  any  government  *  *  The  first  mode  is  by 
coercion  by  military  force,  and  the  second  is  coercion  through 
the  Judiciary.  With  respect  to  coercion  by  force,  I  shall  sup- 
pose that  it  is  so  supremely  i-epugnaut  to  the  principles  of  jus- 
tice and  the  feelings  of  a  free  people,  that  no  man  will  support 
it.  It  must  in  the  end  terminate  in  the  destruction  of  the  lib- 
erties of  the  people.  I  take  it  therefore  that  there  is  no  rational 
way  of  enforcing  the  laws  but  by  the  instrumentality  of  the 
Judiciary  *  *  *  Without  a  Judiciary,  the  injimctions  of 
the  Constitution  may  be  disobeyed  and  the  positive  regulations 
neglected  and  contravened." 

The  provision  of  the  Federal  Constitution  for  the  estab- 
lishment of  a  complete  Federal  Judiciary,  was  given  effect  by 
the  great  Judiciary  Act,  drawn  by  Oliver  Ellsworth  and  pass- 
ed by  Congi-ess  in  1789.     This  Act,  by  which  the  flesh  was  put 


13 

upon  tlie  skelton  created  by  the  Constitution,  is  justly  regarded 
as  in  the  forefront  of  excellence  in  statutory  draftsmanship. 
When  first  organized,  the  Supreme  Court  of  the  United  States 
consisted  of  a  Chief  Justice  and  five  Associate  Justices;  but 
the  number  of  Associate  Justices  is  now  eight. 

The  following,  in  the  order  named,  have  been  the  Chief 
Justices  of  the  Supreme  Court  of  the  United  States: 

John  Jay  (a  great  lawyer  and  statesman,  of  whom  Mr. 
Webster  beautifully  said :  "When  the  spotless  ermine  of  the 
judicial  robe  fell  upon  John  Jay,  it  touched  nothing  less  spot- 
less than  itself") ;  John  Rutlcdge  (who  "was  appointed,  but  not 
confirmed) ;  William  Cushing  (who  resigned  within  about  a 
week  after  confirmation)  ;  Oliver  Ellsworth  (draftsman  of  the 
Judiciary  Act  of  1789)  ;  John  Marshall  (the  greatest  of  all 
judges)  ;  Roger  B.  Taney,  Salmon  P.  Chase ;  Morrison  R. 
Waite,  and  Melville  W.  Fuller. 

At  first,  the  court  had  very  little  business;  but,  as  the 
country  grew  and  prospered,  the  business  of  that  great  tribimal 
increased  to  such  an  extent  that  nine  intermediate  courts  of  ap- 
peal have  been  organized  to  relieve  it  of  the  less  important  mat- 
ters. 

During  their  respective  terms  as  Chief  Justice,  and  with- 
out resignmg  that  office,  Jay  served  as  Minister  to  England, 
and  Ellsworth  as  Minister  to  France. 

At  its  first  session  the  Supreme  Court  of  the  United  States 
had  not  a  single  case  upon  its  docket ;  from  1Y90  to  1800  there 
■were  only  six  cases  decided  by  that  court  involving  Constitu- 
tional questions;  and  when  Chief  Justice  Marshall  came  upon 
the  bench  he  found  only  ten  cases  awaiting  decision. 

With  Marshall,  however ,  the  Supreme  Court,  though 
twelve  years  old,  may  be  said  to  have  i-eally  begun  its  life.  He 
■was  Chief  Justice  thirty-four  years. 

It  may  be  said  that  the  Constitution  formed  the  skelton 
of  this  N'ation,  that  Congress  put  on  the  flesh,  and  that  the  Su- 
preme Court  shaped  the  figure  and  regulated  the  growth.  In 
this  great  work,  Marshall  has  probably  done  more  than  all  the 
ether  members  of  that  court  from  the  begiiming  to  the  present 


14 

time;  and  in  the  opinion  of  many,  this  country  owes  more  to 
him  than  to  any  other  single  man,  with  the  possible  exception 
of  Washington  himself. 

It  is  diiBcult  for  us  to  realize  the  magnitude  of  the  task 
which,  upon  his  appointment  as  Chief  Justice,  he  undertook, 
so  different  are  present  conditions  from  those  which  at  that  time 
existed.  The  Federal  Government  was  then  practically  begin- 
ning its  existence,  and  almost  nothing  had  been  done  in  develop- 
ing our  constitutional  law.  The  scanty  decisions  of  the  Su- 
preme Court,  up  to  that  time,  were  nearly  all  contained  in  a 
single  volume  of  the  official  reports,  and  of  those  decisions  few 
dealt  with  constitutional  questions.  The  people,  as  Edmund 
Randolph  expressed  it,  were  still  "in  the  infancy  of  the  science 
of  constitutions."  And  so,  with  no  precedents  to  guide  him, 
and  with  little  or  no  aid  to  be  derived  from  books,  he  may  be 
said  to  have  created  our  system  of  constitutional  law,  laying  its 
foundations  broad  and  deep.  Other  judges  have  won  renown 
in  administering  technical  or  general  principles  of  law,  or  in 
this  or  that  department  of  jurisprudence  as  applied  to  controver- 
sies between  individuals ;  but,  in  the  department  of  constitu- 
tional law, — ^law  as  applied  to  the  science  and  institutions  of 
Government, — Marshall  stands  unrivalled  and  supreme.  His 
judgments,  so  fraught  with  deepest  consequences  to  the  Ameri- 
can people,  are  justly  ranked  amongst  the  highest  efforts  of  the 
human  mind,  and  are  distinguished  as  well  for  their  simplicity 
and  lucidity  of  style  as  for  their  irresistible  logic  and  profound 
wisdom. 

He  believed  in  the  intelligence,  conservatism  and  patriot- 
ism of  the  American  people,  and  did  not  hesitate  to  interpret 
tlie  Constitution  as  creating  "a  government  of  the  People,  by 
the  People  and  for  the  People,"  and  not  merely  as  a  continuing 
league  of  States  such  as  was  the  old  Confederation.  He  main- 
tained that,  while  the  national  government  is  one  of  enumerated 
powers,  the  Constitution  should  be  construed  not  strictly,  but 
reasonably,  so  as  to  give  due  effect  to  the  words  employed. 

And  so,  by  his  interpretation  of  the  Constitution,  he  im- 
parted to  it  life  and  vigor — finding  it  mere  paper,  he  left  it  a 
Chart  for  the  government  of  a  Nation. 


15 

But,  while  maintaining  the  supremacy  of  the  Constitution, 
as  reasonably  interpreted,  he  not  less  clearly  recognized  the 
rights  of  the  States.  "In  America,"  lie  said,  "the  powers  of 
sovereignty  are  divided  between  the  government  of  the  Union 
and  those  of  the  States.  They  are  each  sovereign  with  respect 
to  the  objects  committed  to  it,  and  neither  sovereign  with  respect 
to  the  objects  committed  to  the  other."  lie  perceived  that  an 
aggregation  of  States,  each  controlling  its  domestic  concerns 
under  a  common  head,  invested  with  limited  powers  for  na- 
tional purposes,  is  the  only  system  adapted  to  the  government 
of  a  vast  territory  like  ours,  and  that,  therefore,  the  States  and 
the  United  States  are  component  parts  of  one  great  whole,  the 
one  being  as  needful  as  the  other ;  or,  as  an  eminent  writer  hap- 
pily expresses  it,  "the  Union  without  self-existent  States  is  as 
a  harp  withoiit  strings;  the  States  without  union  are  as  chords 
that  are  unstrung" — a  principle  recognized  by  the  Supreme 
Court  in  Texas  v.  White,  decided  in  1869,  where  the  court 
speaks  of  "an  indestructible  Union  composed  of  indestructible 
States." 

While  the  great  work  of  Chief  Justice  Marshall  is  recog- 
nized throughout  the  world,  yet  it  is  a  source  of  pride  and  pleas- 
ure to  every  American  to  know  that  this  great  court  has  at  all 
times  been  composed  of  men  who  were  noted  for  their  ability, 
character  and  integrity,  and  the  high  reputation  of  the  presid- 
ing officers  of  that  court  has  at  all  times  been  maintained,  the 
distinguished  American  who  now  presides  over  that  tribunal 
being  in  every  way  a  worthy  successor  of  his  illustrious  pre- 
decessors. 

While  Marshall  was  Chief  Justice,  eleven  hundred  and  six 
cases  were  decided  by  the  Supreme  Court,  of  which  he  wrote  the 
opinions  in  five  hundred  and  nineteen.  Out  of  the  sixty-two 
cases  involving  constitutional  questions  which  the  court  decid- 
ed while  he  was  Chief  Justice,  thirty-six  of  the  opinions  were 
written  by  him.  These  figures  may  give  some  idea  of  the  ex- 
tent, but  not  of  the  importance  of  this  great  man's  public  ser- 
vices. The  extent  to  which  he  dominated  that  court  through- 
out his  long  term  of  service  may  be  shown  by  the  fact  that  in 
only  eight  cases  did  he  file  dissenting  opinions. 


In  the  five  years  from  1875  to  1880,  the  Supreme  Court 
heard  and  decided  nineteen  hundred  and  fifty-five  cases;  and 
at  the  beginning  of  1888  there  were  twenty-five  hundred  and 
seventy-one  cases  pending  on  its  docket.  Since  then,  its  bur- 
dens have  been  relieved  by  the  labors  of  nine  Circuit  Courts 
of  Appeals,  but  still  the  Supreme  Court  of  the  United  States 
is  one  of  the  hardest  worked  Courts  in  the  world. 

In  the  sessions  of  that  great  tribunal,  quietness,  solemnity, 
dignity  and  rapidity  characterize  its  proceedings,  in  which  re- 
spects, as  indeed  in  all  others,  it  is  a  model  for  the  courts  of 
all  the  world. 

The  Supreme  Court,  as  the  capstone  of  the  Federal  Ju- 
diciary, has  well  earned  its  title  of  "Bulwark  of  the  Constitu- 
tion," in  repelling  attacks — sometimes  open,  sometimes  insid- 
ious— upon  that  venerable  instrument,  that  Ark  of  the  ITation's 
Covenant.  In  doing  this,  it  has  defended  States  rights  from 
invasion,  as  vigorously  and  as  effectively  as  it  has  overthrov.-n 
assaults  upon  the  Federal  prerogatives.  It  has  indeed  proven 
itself  to  be  the  "balance  wheel  of  the  Republic." 

In  the  earlier  days  of  our  National  life,  when  the  newly 
formed  Federal  Government  was  surrounded  by  powerful 
States,  like  an  infant  King  surrounded  by  fierce,  jealous  and 
turbulent  Barons,  its  strong,  faithful  and  efiicient  gniardian 
was  the  Supreme  Court.  But,  when  at  the  close  of  the  Civil 
War,  the  Federal  power  was  unduly  exalted,  and  many  woidd 
have  trampled  upon  the  reserved  rights  of  the  States,  this  same 
great  tribunal  interposed  its  powerful  shield  for  the  protection 
of  the  real  rights  of  the  States,  saying  as  it  did  in  Texas  vs. 
White, 

"The  preservation  of  the  States  and  the  maintenance  of 
their  govenmient  are  as  much  within  the  design  and  care  of  the 
Constitution,  as  the  preservation  and  the  maintenance  of  the 
National  Government." 

And,  when,  even  in  the  midst  of  Civil  War,  ill  advised 
men,  flushed  with  recent  victory  and  intoxicated  with  power, 
sought  to  stretch  forth  the  mighty  hand  of  the  Federal  Gov- 
ernment to  illegally  seize  the  property  of  a  private  individual, 


ir 

rvcn  though  he  were  one  of  the  avowed  advcrearies  of  that  \ev.y 
Government,  the  Supreme  Court,  in  the  great  case  of  United 
States  vs.  Lee,  decided  in  1882,  interposed  its  protecting  aegii, 
proclaiming  the  fact  that  America  is  the  land  of  Law  and  not 
of  Violence,  and  that  not  even  the  greatest  Government  on  eartn 
can  override  the  Constitutional  rights  of  a  fi-ee  American  Citi- 
zen. 

In  the  course  of  the  masterly  opinion  of  the  Court  in  that 
case,  Mr.  Justice  Miller  (esteemed  by  many  to  rank  in  ability 
next  to  the  great  Marshall  himself),  discussing  the  Coustitu- 
'tional  provisions  for  the  protection  of  the  individual,  said: 

"These  provisions  for  the  security  of  the  rights  of  the  citi- 
zen stand  in  the  Constitution  in  the  same  connection  and  upon 
the  same  ground,  as  they  regard  his  liberty  and  his  property, 
and  it  cannot  "be  denied  (hat  'both  were  intended  to  be  enforced 
'by  the  'judiciary." 

Further,  it  was  said  that  no  kingly  principle  can  limit  the 
operation  of  the  constitutional  guaranties ;  that  no  man  in  this 
country  is  so  high  that  he  is  above  the  law ;  that  no  officer  of  the 
law  may  set  that  law  at  defiance  with  impunity;  that  all  the 
officers  of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law,  and  are  bound  to  obey  it — a  sentiment, 
let  me  add,  worthy  to  be  written  in  letters  of  gold,  and  placed 
'in  every  American  home! 

Thus  we  have  seen  the  great  "head  of  the  Federal.  Judiciary 
Department  in  Marbury  vs.  Madison,  declining  to  permit  its 
own  powers  to  be  unduly  enlarged — in  McCullock  vs.  Maryland 
repelling  an  attack  upon  the  powers  of  a  co-ordinate  branch  of 
the  Government — in  U.  S.  vs.  Peters,  &  Hunter's  Lessee  vs. 
Martin,  defending  the  Federal  Government  from  attacks  by  the 
States — in  Texas  rs.  White,  repelling  invasion, of  State's  rights 
by  the  Federal  Government — and  in  U.  S.  vs.  Lee  protecting 
individuals  from  oppression  by  the  Government.  In  the  light 
of  sneh  a  record,  we  can  truly  say  that  the  Glory  of  the  Ameri- 
can Republic  is  its  Judiciary! 

Thus  far,  I  have  in  a  hasty  and  imperfect  manner  spoken 
chiefly  of  :the  Federal  Judiciary.     I  would  not,  however,  be 


IS 

understood  as  wanting  in  ajjpreciation  of  the  splendid  contri- 
butions to  our  jurisprudence,  and  to  the  maintenance  of  the 
Constitution,  by  State  Judges.  The  names  of  Taylor,  Kuffin, 
Pearson,  Gaston,  Bynum,  Reed,  Pendleton,  Tucker,  Staples, 
Kent,  Shaw,  Walworth,  Gibson,  Cooley,  and  many  others  who 
have  adorned  the  bench  of  their  respective  States,  will  ever  be 
venerated  and  held  in  grateful  remembrance.  Indeed,  the  his- 
tory of  American  law  could  not  well  be  written  without  refer- 
ring to  the  work  of  those  eminent  jurists. 

It  is  a  great  mistake  to  suppose  that  the  duty  of  expounding 
the  Constitution  has  been  developed  upon  the  Federal  Courts 
alone.  From  the  organization  of  the  Government,  that  duty 
has  been  shared  by  the  Courts  of  the  several  States,  and  in 
many  other  matters  these  Courts  have  exercised,  under  the  law, 
a  concurrent  jurisdiction  with  the  Courts  of  the  Union. 

And  here  it  is  appropriate  to  say  that  as  the  judges  are 
recruited  from  the  Bar,  whatever  of  honor  or  renown  the  ju- 
diciary has  won  belongs  to  the  legal  profession.  The  most 
celebrated  judgments  that  have  ever  been  rendered  from  the 
Bench  were  rendered  after  able  and  helpful  arguments  from 
the  Bar.  Think  of  the  invaluable  contribvitions  to  our  juris- 
prudence in  the  forensic  arguments  of  Hamilton,  Webster,  and 
many  other  brilliant  ornaments  of  tlie  Bar,  whose  names  are 
familiar  to  us  all. 

The  judge,  if  such  a  one  there  be,  who  imagines  that  h-^ 
has  no  need  of  the  aid  of  coimsel,  is  to  be  pitied,  as  are  the  im- 
fortunate  litigants  before  him,  or,  rather  I  should  say,  the  un- 
fortunate victims  of  his  stupidity  and  conceit. 

To  say,  moreover,  in  this  connection,  that  not  only  has  the 
American  Bar  won  imperishable  fame  in  the  forum  and  in  the 
Senate,  but  thrt  in  every  great  movement  in  our  history,  whicli 
Las  redoimded  to  the  public  good  and  the  pubiic  honor,  the 
leaders  have  nearly  always  been  lawyers,  would  be  but  to  affirm 
the  well  known  facts  of  history  which  no  one  can  refute. 

"Justice,"  said  Mr.  Webster,  "is  the  great  interest  of  man 
on  earth;  it  is  the  ligament  which  holds  civilized  beings  and 
civilized  nations  together.  Wherever  her  templ-d  stands,  and 
so  long  as  it  is  duly  honored,  there  is  a  foundation  for  social 


19 

security,  general  liapjiiii(>ss  ami  llir  iiii]iri'vciii  lil  ami  |)n)f;;rpss 
of  our  race." 

If  \vc  are  to  avoid  anarchy  (jr  civil  wai',  the  right  tu  au- 
thoritatively construe  the  Constitution  and  settle  all  conilicts 
with  it,  must  be  lodged  in  some  department  of  the  Government. 
With  this  tremendous,  and  therefore,  delicate  and  dangerous, 
power,  no  department  could  be  so  wisely  or  so  safely  trusted 
as  the  Judiciary. 

I  say  "wisely,"  not  because  judges  have  any  more  wisdom 
than  other  men,  but  because  the  nature  of  their  calling  with- 
draws them  from  the  active  affairs  of  life,  the  passions  genei"- 
oted  by  which  so  often  becloud  or  overthrow  men's  judgment ; 
because  long  years  of  considering  and  deciding  controversies 
makes  them  more  dispassionate,  clear  minded  and  discriminat- 
ing than  they  would  otherwise  be ;  because  the  machinery  of  a 
judicial  tribunal,  insuring  a  full,  quiet  hearing  for  both  sides 
and  ample  time  for  calm  consideration,  tends,  as  far  as  human 
agencies  can  contribute,  to  insure  fair,  just  and  wise  decisions ; 
and  because  the  right  of  appeal  from  one  Court  to  another, 
which  exists  in  practically  all  important  cases,  insures  cooling 
time,  reflection  and  the  checking  of  the  decision's  soundness  by 
the  independent  judgment  of  a  new  set  of  men. 

I  say  the  Judiciary  is  the  "safest"  department  of  Govern- 
ment to  which  this  gi'eat  power  can  be  entrusted,  not  becaiise 
judges  are  better  or  more  trust-worthy  than  other  men,  but  be- 
cause, in  the  nature  of  things,  the  Judiciary  Department  is 
powerless  to  usurp  the  powers  of  either  the  Legislative  or  Exec- 
utive branches. 

In  the  language  of  Alexander  Hamilton,  (the  Judiciary) 
"may  be  truly  said  to  have  neither  force  nor  will,  but  merely 
judicial  judgment  and  must  ultimately  depend  upon  the  aid 
of  the  Executive  arm,  for  the  efficacious  exercise  even  of  this 
faculty." 

Or,  as  Professor  Willougliby  has  so  well  put  it : 

"With  no  executive  force  at  its  back,  and  without  means 
of  extending  its  influence  either  by  patronage  or  command  of 
the  public  revenues,  it  relies  for  the  execution  of  its  decrees, 
upon  the  legal  spirit  and  reverence  for  law  of  the  people,  and 


20 

upon  their  confidence  in  its  justice  and  their  faith  in  its  wis- 
dom." 

The  judge,  then,  who,  by  his  life,  would  betray  this  con- 
fidence, or  by  his  unworthy  deeds  pollute  the  temple  of  justice, 
or  destroy  the  reverence  of  the  People  for  their  laws,  let  him  be 
-Anathema,  for,  indeed,  as  Chief  Justice  Marshall  said:  "the 
greatest  scourage  an  angry  Heaven  ever  inflicted  upon  an  un- 
grateful and  sinning  people,  is  an  ignorant,  a  corrupt  or  a  de- 
pendent Judiciary." 

Strange  to  say,  there  are  those  who  at  this  day  and  time 
insist  that  the  courts  have  no  power  to  declare  an  act  of  the 
Legislative  branch  invalid  when  it  is  in  conflict  with  the  Na- 
tional or  State  Constitution,  and  in  many  instances  unwarrant- 
ed attacks  are  made  upon  the  Supreme  Court  of  the  United 
States  and  the  Suj^reme  Courts  of  the  States  as  well  as  the 
other  courts  of  the  Nation  and  States. 

The  individual  who  insists  that  the  courts  liave  no  power 
to  declare  an  act  of  the  National  or  State  Legislature  invalid 
proclaims  a  doctrine  no  less  dangeroiis  to  the  public  welfare 
than  he  who  by  corrupt  means  seeks  to  pollute  the  fountain  of 
justice  so  as  to  prevent  a  fair  and  impartial  consideration  of 
questions  which  may  be  presented  to  the  courts  for  considera- 
tion. 

The  judges  of  this  country,  with  rarest  exceptions,  have 
been  exempt  from  criticism  calculated  to  affect  their  integrity. 
This  is  a  splendid  tribute  to  the  wisdom  and  foresight  of  the 
framers  of  the  Constitution,  and  while  it  is  a  guarantee  of  the 
stability  of  our  institutions,  at  the  same  time  it  reflects  .great 
credit  upon  the  character  of  the  American  people. 

To  adopt  the  theory  of  those  who  profess  to  believe  that  the 
courts  are  without  authority  to  declare  a  legislative  act  uncon- 
stitutional, would  be  to  reverse  the  uniform  policy  of  this  gov^ 
ernment  from  its  foundation  until  this  good  hour.  It  would 
be  the  accomplishment  of  that  which  was  declared  otherwise 
when  the  Constitution  was  adopted,  and  which  has  been  finally 
and  forever  settled  by  the  highest  courts,  both  State  and  Na- 
tional. 


21 

There  is  a  gi-owing  tendency  on  the  part  of  many  to  in- 
-line to  theories  that  are  wholly  inconsistent  with  our  distinc- 
tive form  of  government,  and  while  at  present  they  are  making 
but  little  headway,  it  should  be  constantly  borne  in  mind  that 
"eternal  vigilance  is  the  price  of  liberty."  It  might  with  equal 
propriety  be  said  that  the  perpetuity  of  our  institutions  depends 
upon  the  vigilance  of  those  who  believe  in  the  doctrines  enun- 
ciated by  Washington,  Hamilton,  Madison,  Jefferson,  Chief 
Justice  Marshall,  and  the  other  patriots  to  whose  wisdom  and 
courage  we  are  indebted  for  the  splendid  heritage  which  we 
now  enjoy. 

Under  our  system  of  government  a  citizen  may  lie  down  at 
night  and  rest  undisturbed  as  to  the  safety  of  his  life  and  prop- 
erty, and  this  ideal  condition  is  due  to  the  fact  that  the  strong 
arm  of  the  law  prevails  and  is  supreme  on  every  inch  of  soil 
beneath  the  Stars  and  Stripes.  This  condition  was  made  pos- 
sible as  a  resiilt  of  the  fair  and  impartial  administration  of 
justice  by  a  Judiciary  whose  sole  ambition  was  to  enforce  the 
law  in  accordance  with  the  written  Constitution  drafted  by 
those  who  sacrificed  their  all  in  order  that  their  descendants 
might  be  exempt  from  the  acts  of  tyranny  and  injustice  which 
inspired  them  to  take  the  initiative  in  a  movement  the  like  of 
which  in  magnitude  and  importance  had  never  been  undertaken 
by  any  people  on  the  face  of  the  earth. 

I  firmly  believe  that  an  overwhelming  majority  of  the 
American  people  fully  appreciate  the  strength  of  our  Govern- 
ment as  now  constituted,  as  well  as  the  many  blessings  that  flow 
therefrom,  and  while  we  are  occasionally  confronted  by  the 
spasmodic  efforts  of  those  who  know  not  what  they  do,  and  whose 
counsel,  if  heeded,  would  disrupt  our  Government,  nevertheless 
I  have  an  abiding  faith  in  the  American  people,  and  I  cannot 
believe  that  the  time  will  ever  come  when  a  government  of  the 
People,  for  the  People  and  by  the  People  shall  perish  from  the 
face  of  the  earth. 


i 


